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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–262
_________________
VIRGIL D. “GUS” REICHLE, jr., et
al., PETITIONERS
v. STEVEN HOWARDS
on writ of certiorari to the united states
court of appeals for the tenth circuit
[June 4, 2012]
Justice Thomas delivered the opinion of the
Court.
This case requires us to decide whether two
federal law enforcement agents are immune from suit for allegedly
ar- resting a suspect in retaliation for his political speech, when
the agents had probable cause to arrest the suspect for committing
a federal crime.
I
On June 16, 2006, Vice President Richard
Cheney vis- ited a shopping mall in Beaver Creek, Colorado. A
Secret Service protective detail accompanied the Vice President.
Petitioners Gus Reichle and Dan Doyle were members of that
detail.
Respondent Steven Howards was also at the mall.
He was engaged in a cell phone conversation when he noticed the
Vice President greeting members of the public. Agent Doyle
overheard Howards say, during this conversation,
“ ‘I’m going to ask [the Vice President] how
many kids he’s killed today.’ ” Brief for
Petitioners 4. Agent Doyle told two other agents what he had heard,
and the three of them began monitoring Howards more closely.
Agent Doyle watched Howards enter the line to
meet the Vice President. When Howards approached the Vice
President, he told him that his “ ‘policies in
Iraq are disgusting.’ ”
Ibid. The Vice
President simply thanked Howards and moved along, but Howards
touched the Vice President’s shoulder as the Vice President
departed.[
1] Howards then
walked away.
Several agents observed Howards’ encounter
with the Vice President. The agents determined that Agent Reichle,
who coordinated the protective intelligence team respon- sible for
interviewing individuals suspected of violat- ing the law, should
question Howards. Agent Reichle had not personally heard
Howards’ comments or seen his con- tact with the Vice
President, but Agent Doyle briefed Agent Reichle on what had
happened.
Agent Reichle approached Howards, presented his
badge and identified himself, and asked to speak with him. Howards
refused and attempted to walk away. At that point, Agent Reichle
stepped in front of Howards and asked if he had assaulted the Vice
President. Pointing his finger at Agent Reichle, Howards denied
assaulting the Vice President and told Agent Reichle, “if you
don’t want other people sharing their opinions, you should
have him [the Vice President] avoid public places.”
Howards v.
McLaughlin, 634 F.3d 1131, 1137 (CA10
2011) (internal quotation marks omitted). During this exchange,
Agent Reichle also asked Howards whether he had touched the Vice
President. Howards falsely denied doing so. After confirming that
Agent Doyle had indeed seen Howards touch the Vice President,
Reichle arrested Howards.
The Secret Service transferred Howards to the
custody of the local sheriff’s department. Howards was
charged by local officials with harassment in violation of state
law. The charge was eventually dismissed.
II
Howards brought this action in the United
States District Court for the District of Colorado under Rev. Stat.
§1979, 42 U. S. C. §1983, and
Bivens v.
Six Unknown Fed. Narcotics Agents,
403
U.S. 388 (1971).[
2] Howards
alleged that he was arrested and searched without probable cause,
in violation of the Fourth Amendment. Howards also al- leged that
he was arrested in retaliation for criticizing the Vice President,
in violation of the First Amendment.
Petitioners Reichle and Doyle moved for summary
judgment on the ground that they were entitled to qualified
immunity. The District Court denied the motion. See App. to Pet.
for Cert. 46–61. On interlocutory appeal, a divided panel of
the United States Court of Appeals for the Tenth Circuit affirmed
in part and reversed in part. 634 F.3d 1131.
The Court of Appeals held that petitioners
enjoyed qualified immunity with respect to Howards’ Fourth
Amendment claim. The court concluded that petitioners had probable
cause to arrest Howards for making a materially false statement to
a federal official in violation of 18 U. S. C. §1001
because he falsely denied touching the Vice President. 634
F. 3d, at 1142. Thus, the court concluded that neither
Howards’ arrest nor search incident to the arrest violated
the Fourth Amendment.[
3]
Id., at 1142–1143
.
However, the Court of Appeals denied petitioners
qualified immunity from Howards’ First Amendment claim. The
court first determined that Howards had established a material
factual dispute regarding whether petitioners were substantially
motivated by Howards’ speech when they arrested him.
Id., at 1144–1145. The court then rejected
petitioners’ argument that, under this Court’s decision
in
Hartman v.
Moore, 547 U.S.
250 (2006), probable cause to arrest defeats a First Amendment
claim of retaliatory arrest. The court concluded that
Hartman established such a rule only for retaliatory
prosecution claims and, therefore, did not upset prior Tenth
Circuit precedent clearly establishing that a retaliatory
arrest violates the First Amendment even if supported by
probable cause. 634 F. 3d
, at 1148.
Judge Paul Kelly dissented from the
court’s denial of qualified immunity. He would have held that
when Howards was arrested, it was not clearly established that an
arrest supported by probable cause could violate the First
Amendment. In Judge Kelly’s view,
Hartman called into
serious question the Tenth Circuit’s prior precedent on
retaliatory arrests. 634 F. 3d, at 1151. He noted that other
Circuits had applied
Hartman to retaliatory arrests and that
there was a “strong argument” in favor of doing so. 634
F. 3d, at 1151–1152.
We granted certiorari on two questions: whether
a First Amendment retaliatory arrest claim may lie despite the
presence of probable cause to support the arrest, and whether
clearly established law at the time of Howards’ arrest so
held. See 565 U. S. ___ (2011). If the answer to either
question is “no,” then the agents are entitled to
qualified immunity. We elect to address only the second question.
We conclude that, at the time of Howards’ arrest, it was not
clearly established that an arrest supported by probable cause
could violate the First Amendment. We, therefore, reverse the
judgment of the Court of Appeals denying petitioners qualified
immunity.[
4]
III
Qualified immunity shields government
officials from civil damages liability unless the official violated
a statutory or constitutional right that was clearly established at
the time of the challenged conduct. See
Ashcroft v.
al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 3). In
Pearson v.
Callahan, 555 U.S.
223, 236 (2009), we held that courts may grant qualified
immunity on the ground that a purported right was not
“clearly established” by prior case law, without
resolving the often more difficult question whether the purported
right exists at all.
Id., at 227. This approach comports
with our usual reluctance to decide constitutional questions
unnecessarily.
Id., at 241; see also
Camreta v.
Greene, 563 U. S. ___, ___ – ___ (2011) (slip
op., at 9–10);
al-Kidd, 563 U. S., at ___ (slip
op., at 3).
To be clearly established, a right must be
sufficiently clear “that every ‘reasonable official
would [have understood] that what he is doing violates that
right.’ ”
Id., at ___ (slip op., at 9)
(quoting
Anderson v.
Creighton, 483 U.S.
635, 640 (1987)). In other words, “existing precedent
must have placed the statutory or constitutional question beyond
debate.” 563 U. S., at ___ (slip op., at 9). This
“clearly established” standard protects the balance
between vindication of constitutional rights and government
officials’ effective performance of their duties by ensuring
that officials can “ ‘reasonably . . .
anticipate when their conduct may give rise to liability for
damages.’ ”
Anderson, supra, at 639
(quoting
Davis v.
Scherer,
468
U.S. 183, 195 (1984)).
The “clearly established” standard
is not satisfied here. This Court has never recognized a First
Amendment right to be free from a retaliatory arrest that is
supported by probable cause; nor was such a right otherwise clearly
established at the time of Howards’ arrest.
A
Howards contends that our cases have
“settled” the rule that, “ ‘as a
general matter[,] the First Amendment prohibits government
officials from subjecting an individual to retaliatory
actions’ ” for his speech. See Brief for
Respondent 39 (quoting
Hartman, supra, at 256). But we have
previously explained that the right allegedly violated must be
established, “ ‘not as a broad general
proposition,’ ”
Brosseau v.
Haugen,
543 U.S.
194, 198 (2004)
(per curiam), but in a
“particularized” sense so that the
“contours” of the right are clear to a reasonable
official,
Anderson, supra, at 640. Here, the right in
question is not the general right to be free from retaliation for
one’s speech, but the more specific right to be free from a
retaliatory arrest that is otherwise supported by probable cause.
This Court has never held that there is such a right.[
5]
B
We next consider Tenth Circuit precedent.
Assuming ar- guendo that controlling Court of Appeals’
authority could be a dispositive source of clearly established law
in the circumstances of this case, the Tenth Circuit’s cases
do not satisfy the “clearly established” standard
here.
Relying on
DeLoach v.
Bevers, 922
F.2d 618 (1990), and
Poole v.
County of Otero,
271 F.3d 955 (2001), the Court of Appeals concluded that, at
the time of Howards’ arrest, its precedent had clearly
established the unlawfulness of an arrest in retaliation for the
exercise of First Amendment rights, irrespective of probable cause.
In
DeLoach, a case involving both a retaliatory arrest and a
retaliatory prosecution, the court held that “[a]n act taken
in retaliation for the exercise of a constitutionally protected
right is actionable under §1983 even if the act, when taken
for a different reason, would have been proper.” 922
F. 2d
, at 620 (internal quotation marks omitted). In
Poole, a sub- sequent retaliatory prosecution case, the
court relied on
DeLoach for the proposition that a
plaintiff’s illegal conduct is “not relevant to his
First Amendment claim.” 271 F. 3d
, at 961.
The Court of Appeals acknowledged that
Poole was abrogated by this Court’s subsequent
decision in
Hartman v.
Moore,
547
U.S. 250, which held that a plaintiff cannot state a claim of
retaliatory prosecution in violation of the First Amendment if the
charges were supported by probable cause. But the Court of Appeals
determined that
Hartman’s no-probable-cause
requirement did not extend to claims of retaliatory arrest and
therefore did not disturb its prior precedent in
DeLoach.
Accordingly, the court concluded, “when Mr. Howards was
arrested it was clearly established that an arrest made in
retaliation of an individual’s First Amendment rights is
unlawful, even if the arrest is supported by probable cause.”
634 F. 3d, at 1148.
We disagree. At the time of Howards’
arrest,
Hartman’s impact on the Tenth Circuit’s
precedent governing retal- iatory arrests was far from clear.
Although the facts of
Hartman involved only a retaliatory
prosecution, reason- able officers could have questioned whether
the rule of
Hartman also applied to arrests.
Hartman was decided against a legal
backdrop that treated retaliatory arrest and prosecution claims
similarly.
Hartman resolved a split among the Courts of
Appeals about the relevance of probable cause in retaliatory
prosecution suits, but some of the conflicting court of appeals
cases involved both an arrest and a prosecution that were alleged
to be retaliation for the exercise of First Amendment rights. See
547 U. S., at 255–256, 259, n. 6 (citing
Mozzochi v.
Borden, 959 F.2d 1174 (CA2 1992);
Singer v.
Fulton Cty. Sheriff,
63 F.3d 110 (CA2 1995);
Keenan v.
Tejeda,
290 F.3d 252 (CA5 2002);
Wood v.
Kesler,
323 F.3d 872 (CA11 2003)). Those cases made no distinction
between claims of retaliatory arrest and claims of retaliatory
prosecution when considering the relevance of prob- able cause. See
Mozzochi, supra, at 1179–1180;
Singer, supra,
at 120;
Keenan, supra, at 260;
Wood, supra, at 883.
Indeed, the close relationship between retaliatory arrest and
prosecution claims is well demonstrated by the Tenth
Circuit’s own decision in
DeLoach. DeLoach, too,
involved allegations of both retaliatory arrest and retaliatory
prosecution, and the Tenth Circuit analyzed the two claims as one.
922 F. 2d, at 620–621.
A reasonable official also could have
interpreted
Hartman’s rationale to apply to
retaliatory arrests.
Hartman first observed that, in
retaliatory prosecution cases, evidence showing whether there was
probable cause for the charges would always be “available and
apt to prove or disprove retaliatory causation.” 547
U. S.
, at 261. In this Court’s view, the presence
of probable cause, while not a “guarantee” that
retaliatory motive did not cause the prosecution, still precluded
any prima facie inference that retaliatory motive was the but-for
cause of the plaintiff’s injury.
Id., at 265. This was
especially true because, as
Hartman next emphasized,
retaliatory prosecution claims involve particularly attenuated
causation between the de- fendant’s alleged retaliatory
animus and the plaintiff’s injury.
Id., at
259–261. In a retaliatory prosecution case, the key defendant
is typically not the prosecutor who made the charging decision that
injured the plaintiff, because prosecutors enjoy absolute immunity
for their decisions to prosecute. Rather, the key defendant is the
person who allegedly prompted the prosecutor’s decision.
Thus, the intervening decision of the third-party prosecutor widens
the causal gap between the defendant’s animus and the
plaintiff’s injury.
Id., at 261–263.
Like retaliatory prosecution cases, evidence of
the presence or absence of probable cause for the arrest will be
available in virtually every retaliatory arrest case. Such evidence
could be thought similarly fatal to a plaintiff’s claim that
animus caused his arrest, given that retaliatory arrest cases also
present a tenuous causal connection between the defendant’s
alleged animus and the plaintiff’s injury. An officer might
bear animus toward the content of a suspect’s speech. But the
officer may decide to arrest the suspect because his speech
provides evidence of a crime or suggests a potential threat. See,
e.g., Wayte v.
United States, 470
U.S. 598, 612–613 (1985) (noting that letters of protest
written to the Selective Service, in which the author expressed
disagreement with the draft, “provided strong, perhaps
conclusive evidence” of the nonregistrant’s intent not
to comply—one of the elements of the offense” of
willful failure to register for the draft). Like retaliatory
prosecution cases, then, the connection between alleged animus and
injury may be weakened in the arrest context by a police
officer’s wholly legitimate consideration of speech.
To be sure, we do not suggest that
Hartman’s rule in fact extends to arrests. Nor do we
suggest that every as- pect of
Hartman’s rationale
could apply to retaliatory arrests.
Hartman concluded that
the causal connection in retaliatory prosecution cases is
attenuated because those cases necessarily involve the animus of
one person and the injurious action of another, 547 U. S., at
262, but in many retaliatory arrest cases, it is the officer
bearing the al- leged animus who makes the injurious arrest.
Moreover,
Hartman noted that, in retaliatory prosecution
cases, the causal connection between the defendant’s animus
and the prosecutor’s decision is further weakened by the
“presumption of regularity accorded to prosecutorial
decisionmaking.”
Id., at 263. That presumption does
not apply here. Nonetheless, the fact remains that, for qualified
immunity purposes, at the time of Howards’ arrest it was at
least arguable that
Hartman’s rule extended to
retaliatory arrests.[
6]
Decisions from other Federal Courts of Appeals
in the wake of
Hartman support this assessment. Shortly
before Howards’ arrest, the Sixth Circuit held that
Hartman required a plaintiff alleging a retaliatory arrest
to show that the defendant officer lacked probable cause. See
Barnes v.
Wright, 449
F.3d 709, 720 (2006) (reasoning that the
Hartman
“rule sweeps broadly”). That court’s treatment of
Hartman confirms that the inapplicability of
Hartman
to arrests would not have been clear to a reasonable officer when
Howards was arrested. Moreover, since Howards’ arrest,
additional Courts of Appeals have concluded that
Hartman’s no-probable-cause requirement extends to
retaliatory arrests. See,
e.g., McCabe v.
Parker, 608 F.3d 1068, 1075 (CA8 2010);
Phillips v.
Irvin, 222 Fed. Appx. 928, 929 (CA11 2007)
(per curiam). As we have previously observed,
“[i]f judges thus disagree on a constitutional question, it
is unfair to subject police to money damages for picking the losing
side of the controversy.”
Wilson v.
Layne,
526 U.S.
603, 618 (1999).[
7]
* * *
Hartman injected uncertainty into the
law governing retaliatory arrests, particularly in light of
Hartman’s rationale and the close relationship between
retaliatory arrest and prosecution claims. This uncertainty was
only confirmed by subsequent appellate decisions that disagreed
over whether the reasoning in
Hartman applied similarly to
retaliatory arrests. Accordingly, when Howards was arrested it was
not clearly established that an arrest supported by probable cause
could give rise to a First Amendment violation. Petitioners Reichle
and Doyle are thus entitled to qualified immunity.
The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Kagan took no part in the consideration
or decision of this case.